BATEMAN & HARRIS [2018] FCCA 3822
Catchwords:
FAMILY LAW – Interim parenting – where mother is seeking father’s time with child aged 9 be reduced to supervised time – where family report after considering filed material, subpoenaed material and interviews with child and partners of parents recommends supervised time as child is at risk of harm in father’s household – Held father’s time be supervised pending a final hearing.
Legislation:
Family Law Act 1975 (Cth), s.60CC
Cases cited:
Goode & Goode [2006] FamCA 1346
Applicant: MR BATEMAN
Respondent: MS HARRIS
File Number: BRC 984 of 2015
Judgment of: Judge L. Turner
Hearing date: 29 November 2018
Date of Last Submission: 29 November 2018
Delivered at: Brisbane
Delivered on: 4 December 2018
REPRESENTATION
The Applicant appeared in person
Solicitors for the Respondent: Mr Bertrand of Sterling Law (Qld)
Solicitors for the Independent
Children’s Lawyer: Mr Field of Aylward Game Solicitors
(1) That all previous parenting orders as to the father’s time with the child are hereby suspended.
(2) That the child S—- —- Y——-BATEMAN born — —— 2009 (“the child”) spend supervised time with the father at a contact centre with such contact centre to be as agreed between the parties for a period of two hours per fortnight at such times and days as can be accommodated by the contact centre, with the parties to do whatever be necessary to complete intake, with the contact centre with the parties to share equally in the costs associated with the supervised time at the contact centre.
(3) That the Independent Children’s Lawyer have permission to provide to the child’s treating psychologist and or play therapist a copy of the family report of Ms D released in November 2018.
(4) That the Application be adjourned for final hearing for three (3) days on
a date to be fixed in the Federal Circuit Court of Australia at Brisbane.
Applicant And
Respondent
Introduction
.
1. The parties are the parents of a boy, S—-, aged 9.
2. In August 2016, after a three day final hearing, Judge Baumann (as his Honour was then known) made final parenting orders whereby the child live with the mother, the parties have equal shared parental responsibility for the child, and the child spend time with the father on alternate weekends during school terms, half school holidays and special events.
3. In March 2018, the father re-opened the parenting issues seeking orders for the child to live with the father and spend alternate weekend and half school holiday time with the mother.
4. At the first return date in April 2018, an independent children’s lawyer (ICL) was appointed and interim orders were made for the father to have alternate weekend time and an overnight in the other week.
5. Subsequently, the ICL organised family report interviews with the family report released by Ms D in November 2018.
6. Following the family report recommendations, the ICL prepared proposed interim orders, many of which were agreed to by the parties resulting in interim consent orders being made when the matter was before the court on 29 November 2018.
Issues
7. However, two proposed orders are in dispute:-
a) The mother and the ICL are seeking to release a copy of the family report to the child’s general practitioner, the contact centre and the child’s psychologist or play therapist.
b) The ICL and the mother are seeking for the father’s time with S—- to be reduced to supervised time.
8. The father, who is a self-represented litigant, is opposed to these orders being made.
Release of the family report
9. I find, given the parties have agreed to orders for the child to attend on a psychologist or play therapist that it would be of great assistance to the health professional to have access to the family report as it provides a comprehensive commentary of the issues facing S—-.
10. I, therefore, order that the ICL have leave to provide a copy of the family report to the psychologist or play therapist.
11. However, as to the issue of whether the family report is to be released to the GP or any contact centre I find is not an issue that need be considered prior to the final hearing.
Spend time with arrangements for father and S—-
12. Should the father’s time with the child be reduced to supervised time, pending the final hearing?
13. Whilst there may be a tendency to identify this as an issue that would be better left to a final hearing, I agree, upon reading the family report, that there are significant areas of concern about what is happening around S—- that warrants a consideration of this matter on an interim basis.
14. In considering this matter, based on the material filed and the submissions, I am aware of the pathway to follow in determining interim issues as set out in the Full Court decision of Goode & Goode [2006] FamCA 1346 and also acutely aware of the limitations upon the court in interim hearings to be able to make findings on disputed facts.
15. This is a matter, however, where, firstly, the family report writer has had access not only to filed material but also to the subpoenaed documents and secondly, where the recommendations have been made (bearing all of this mind) after considering additional information gathered upon interviewing the child, the mother, her partner, the father and his partner.
16. The father claims that the family report writer has “discriminated” against him and that he is a father “110 %” and there has never been family violence against the mother or the child.
17. Therefore, in making this determination, I have focused on those concerns raised by the family report writer that are supported by independent evidence and not just on what one parent is reporting.
18. These concerns are as follows:-
a) S—-’s behaviour
i) The mother, during the family report interviews, spoke of S—-’s behaviour when he returns from the father, such as smashing and breaking things including items belonging to his younger brother, Carter, and the manner in which S—- speaks to her ([3.28] family report).
ii) The father said he was aware that S—- “pulled a knife on the mother saying he hated living with her” ([7.10] family report).
iii) The father denied that he told the child to call the mother names ([7.10] family report).
iv) The Department of Child Safety, Youth and Women (DoCS) were involved with S—- in August 2018, with the father telling the child to say certain things.
v) The Health Service notes refer to the father “telling S—- to say and do things”.
vi) DoCS completed an investigation and records in the notes that the claims of emotional harm had been substantiated and the father was the person responsible for this harm ([3.27] family report).
vii) When asked by the family report writer whether there had been involvement of DoCS, the father said he has never been visited or interviewed by them. When the father was challenged about this, as it was inconsistent with the department’s records, the father “simply answered by saying that ‘the department discriminated against me’” ([7.19] family report).
b) S—-’s ADHD
i) S—- suffers from ADHD and is on medication to treat his condition.
ii) The mother’s partner informed the family report writer that the father does not give the medication to S—- when the child is in his care and the father has left the medication at school after collecting the child ([5.5] family report).
iii) This is confirmed by S—- who told the family report writer “that he does take medication when he lives with his mother but not when he stays with” the father “as he thinks I need to see a different doctor and the doctor said I don’t need it” ([6.4] family report).
iv) The father is aware that the mother says the child has ADHD but informed the family report writer “that S—- doesn’t need medication” as “S—- is healthy and meeting his developmental and social milestones” ([7.20] family report).
v) The family report writer notes that the father “appeared quite rigid in his thinking and views” ([7.20] family report).
c) S—-’s attendance at school
i) There is a history of the father collecting the child early from school on Friday and taking the child late to school on Monday when the child is spending weekend time with the father.
ii) The mother’s partner explained that for the last few months prior to the family report interviews, the father had collected S—- around 12 midday on Friday and dropped him as late as 11am to school on Monday ([5.5] family report).
iii) S—- confirmed this, stating to the family report writer “that his father picks him up from school early every second Friday and drops him back to school late on a Monday, as he lives a long way from where he goes to school” and “that his father says he doesn’t like waking up early” and “that’s why he gets to school late” ([6.4] family report).
iv) The father admitted to the family report writer that he “generally collects S—- from school early at around 2 pm, as he lives at Town B” and “that S—- arrives back at school before 10 am on a Monday, due to the distance he lives from the school” ([7.13] family report).
v) When the father was “asked how he believed that these arrangements impacted on S—- and his education”, the father “simply replied ‘it’s [the mother’s]’s fault. She moved’” ([7.13] family report).
vi) “When the school confronted the father about collecting S—- early from school, the father became angry and the police had to be called” ([10.9] family report).
d) S—-’s exposure to family violence
i) During the course of the interim hearing, the father denied the existence of family violence.
ii) However, to the family report writer the father “said that there have always been ongoing DVOs” ([7.7] family report).
iii) The family report writer noted the father “appeared to minimise and appeared dismissive of the history of domestic violence between he and the mother” and “confirmed that there was a DVO in place with the mother that expires in March 2019. When asked about the context of the DV, he appeared to again have memory issues and I assess that the father was selective of what he could recall and what information he wanted to confirm” ([7.17] family report).
iv) The mother’s partner informed the family report writer “there has never been any violence between her and the father” ([8.3] family report) “however, the police records report an incident between the father and his partner in June 2016 where the father’s partner reported being assaulted by the father” ([10.10] family report).
e) S—-’s lack of boundaries and routines when with father
i) The father admits, “that there were no rules for S—- at his home as this is S—-’s ‘free time’” ([7.11] family report).
ii) When the father was challenged by the family report writer “about parenting, there being no rules or boundaries to guide the child to make appropriate choices” the family report writer noted the father “didn’t appear to have any insight into how his actions could impact on S—- or create instability for him in a co-parenting relationship” ([7.12] family report).
f) Father’s abuse of S—-
i) The DoCS records for 2018 indicate that concerns were raised as to S—- in the father’s care as the father has been “physically abusive towards S—-”, S—- had witnessed a “bong” at his father’s home “being used by his father’s partner”, S—- had disclosed that the father “gets angry” when he calls his mother’s partner “dad” and that the father pulled S—-’s shirt and this “choked” him. S—- reported that the father “yells at him if he doesn’t follow the rules” ([10.6] and [10.7] family report).
ii) DoCS records reflect, “the assessment workers observed S—- to become too fidgety and to appear anxious and nervous when speaking” about the father and “S—- didn’t want his father to know certain things he had said to them” ([10.8] family report).
iii) The father says, “he has never been physically or emotionally abusive towards S—-” ([7.10] family report).
g) S—- being told to lie by father
i) S—- told DoCS that the “father tells him that his mother is a bad person” and wants “S—- to tell the departmental workers that he wants to live with the father” ([10.7] family report).
ii) S—- told the department that he was assaulted by the father’s partner but later told police that he had fallen from his bike and had not been assaulted and that the father had told S—- to tell people that his mother pushed him into a wall ([10.7] family report).
19. The family report writer, having captured all of these concerns, then made the following assessments:
a) “I remain very concerned that S—-’s emotional wellbeing is being significantly compromised when he spends time with the father” ([11.1] family report).
b) “The father appears to have little insight into S—-’s emotional and developmental needs” ([11.1] family report).
c) “The father has little regard for the mother and, therefore, appears to show little respect” ([11.2] family report).
d) “I have formed the view that the father appears, from the DoCS material and Department of Education material, which is alarming, to be actively trying to influence S—- to behave badly at school and at the mother’s home, which will have a detrimental effect on both S—-’s emotional stability in the home environment and on his education” ([11.2] family report).
e) “I am concerned the father does not appear to accept the importance of S—- having stability in his life” ([11.2] family report).
f) “Of concern to me is that” the father “referred to having no rules at his house for S—- and he appeared to believe that this was an appropriate form of parenting, so that S—- could be free of rules and boundaries that he has when at home with his mother” ([11.5] family report).
g) “Children who are subjected to a chaotic home environment and where there is inconsistent parenting and a lack of any effective co- parenting are at a higher risk of behavioural issues” ([11.7] family report).
h) “The behaviour S—- is exhibiting may be a result of the emotional abuse, poor boundaries and negative influences from the father” ([11.8] family report).
i) “I am concerned that there is evidence before the Court that supports the father being responsible for this accumulative emotional harm on S—-” ([11.8] family report).
j) “The greatest risk factor I have assessed at this time is the time that S—- spends with his father” ([11.11] family report).
20. In conclusion, the family report writer recommends the court “take a cautious approach to contact between the father and S—- and restrict this to being supervised until such time that the father has completed certain tasks and demonstrated greater awareness of the defects in his parenting” ([11.5] family report).
Conclusion
21. Having considered the concerns, all of which are supported by independent evidence, whether from the child, from the partner, educational records or DoCS records, I find that a cautious approach must be taken in this matter.
22. Where there is concern, as set out in section 60CC(2)(b) Family Law Act 1975, of a need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect of family violence, then pursuant to section 60CC(2A), greater weight must be given to this consideration than any other.
23. The evidence supports that S—- is at risk of harm in the father’s care on many levels, as illustrated by the identified concerns in the family report.
24. Therefore, until a final hearing of this matter, the father’s time with the child is to be supervised, and is to occur once a fortnight.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 19 December 2018
